[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 1962 Reported in Senate (RS)]





                                                       Calendar No. 541

104th CONGRESS

  2d Session

                                S. 1962

                          [Report No. 104-335]

_______________________________________________________________________

                                 A BILL

 To amend the Indian Child Welfare Act of 1978, and for other purposes.

_______________________________________________________________________

                             July 26, 1996

                       Reported without amendment





                                                       Calendar No. 541
104th CONGRESS
  2d Session
                                S. 1962

                          [Report No. 104-335]

 To amend the Indian Child Welfare Act of 1978, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 16, 1996

    Mr. McCain (for himself, Mr. Inouye, Mr. Glenn, Mr. Thomas, Mr. 
Domenici, Mrs. Kassebaum, Mr. Cochran, Mr. Murkowski, Mr. Campbell, Mr. 
 Simon, and Mr. Dorgan) introduced the following bill; which was read 
         twice and referred to the Committee on Indian Affairs

                             July 26, 1996

               Reported by Mr. McCain, without amendment

_______________________________________________________________________

                                 A BILL


 
 To amend the Indian Child Welfare Act of 1978, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; REFERENCES.

    (a) Short Title.--This Act may be cited as the ``Indian Child 
Welfare Act Amendments of 1996''.
    (b) References.--Whenever in this Act an amendment or repeal is 
expressed in terms of an amendment to or repeal of a section or other 
provision, the reference shall be considered to be made to a section or 
other provision of the Indian Child Welfare Act of 1978 (25 U.S.C. 1901 
et seq.).

SEC. 2. EXCLUSIVE JURISDICTION.

    Section 101(a) (25 U.S.C. 1911(a)) is amended--
            (1) by inserting ``(1)'' after ``(a)''; and
            (2) by striking the last sentence and inserting the 
        following:
    ``(2) An Indian tribe shall retain exclusive jurisdiction over any 
child custody proceeding that involves an Indian child, notwithstanding 
any subsequent change in the residence or domicile of the Indian child, 
in any case in which the Indian child--
            ``(A) resides or is domiciled within the reservation of the 
        Indian tribe and is made a ward of a tribal court of that 
        Indian tribe; or
            ``(B) after a transfer of jurisdiction is carried out under 
        subsection (b), becomes a ward of a tribal court of that Indian 
        tribe.''.

SEC. 3. INTERVENTION IN STATE COURT PROCEEDINGS.

    Section 101(c) (25 U.S.C. 1911(c)) is amended by striking ``In any 
State court proceeding'' and inserting ``Except as provided in section 
103(e), in any State court proceeding''.

SEC. 4. VOLUNTARY TERMINATION OF PARENTAL RIGHTS.

    Section 103(a) (25 U.S.C. 1913(a)) is amended--
            (1) by inserting ``(1)'' before ``Where'';
            (2) by striking ``foster care placement'' and inserting 
        ``foster care or preadoptive or adoptive placement'';
            (3) by striking ``judge's certificate that the terms'' and 
        inserting the following: ``judge's certificate that--
            ``(A) the terms'';
            (4) by striking ``or Indian custodian.'' and inserting ``or 
        Indian custodian; and'';
            (5) by inserting after subparagraph (A), as designated by 
        paragraph (3) of this subsection, the following new 
        subparagraph:
            ``(B) any attorney or public or private agency that 
        facilitates the voluntary termination of parental rights or 
        preadoptive or adoptive placement has informed the natural 
        parents of the placement options with respect to the child 
        involved, has informed those parents of the applicable 
        provisions of this Act, and has certified that the natural 
        parents will be notified within 10 days of any change in the 
        adoptive placement.'';
            (6) by striking ``The court shall also certify'' and 
        inserting the following:
    ``(2) The court shall also certify'';
            (7) by striking ``Any consent given prior to,'' and 
        inserting the following:
    ``(3) Any consent given prior to,''; and
            (8) by adding at the end the following new paragraph:
    ``(4) An Indian custodian who has the legal authority to consent to 
an adoptive placement shall be treated as a parent for the purposes of 
the notice and consent to adoption provisions of this Act.''.

SEC. 5. WITHDRAWAL OF CONSENT.

    Section 103(b) (25 U.S.C. 1913(b)) is amended--
            (1) by inserting ``(1)'' before ``Any''; and
            (2) by adding at the end the following new paragraphs:
    ``(2) Except as provided in paragraph (4), a consent to adoption of 
an Indian child or voluntary termination of parental rights to an 
Indian child may be revoked, only if--
            ``(A) no final decree of adoption has been entered; and
            ``(B)(i) the adoptive placement specified by the parent 
        terminates; or
            ``(ii) the revocation occurs before the later of the end 
        of--
                    ``(I) the 180-day period beginning on the date on 
                which the Indian child's tribe receives written notice 
                of the adoptive placement provided in accordance with 
                the requirements of subsections (c) and (d); or
                    ``(II) the 30-day period beginning on the date on 
                which the parent who revokes consent receives notice of 
                the commencement of the adoption proceeding that 
                includes an explanation of the revocation period 
                specified in this subclause.
    ``(3) The Indian child with respect to whom a revocation under 
paragraph (2) is made shall be returned to the parent who revokes 
consent immediately upon an effective revocation under that paragraph.
    ``(4) Subject to paragraph (6), if, by the end of the applicable 
period determined under subclause (I) or (II) of paragraph (2)(B)(ii), 
a consent to adoption or voluntary termination of parental rights has 
not been revoked, beginning after that date, a parent may revoke such a 
consent only--
            ``(A) pursuant to applicable State law; or
            ``(B) if the parent of the Indian child involved petitions 
        a court of competent jurisdiction, and the court finds that the 
        consent to adoption or voluntary termination of parental rights 
        was obtained through fraud or duress.
    ``(5) Subject to paragraph (6), if a consent to adoption or 
voluntary termination of parental rights is revoked under paragraph 
(4)(B), with respect to the Indian child involved--
            ``(A) in a manner consistent with paragraph (3), the child 
        shall be returned immediately to the parent who revokes 
        consent; and
            ``(B) if a final decree of adoption has been entered, that 
        final decree shall be vacated.
    ``(6) Except as otherwise provided under applicable State law, no 
adoption that has been in effect for a period longer than or equal to 2 
years may be invalidated under this subsection.''.

SEC. 6. NOTICE TO INDIAN TRIBES.

    Section 103(c) (25 U.S.C. 1913(c)) is amended to read as follows:
    ``(c)(1) A party that seeks the voluntary placement of an Indian 
child or the voluntary termination of the parental rights of a parent 
of an Indian child shall provide written notice of the placement or 
proceeding to the Indian child's tribe. A notice under this subsection 
shall be sent by registered mail (return receipt requested) to the 
Indian child's tribe, not later than the applicable date specified in 
paragraph (2) or (3).
    ``(2)(A) Except as provided in paragraph (3), notice shall be 
provided under paragraph (1) in each of the following cases:
            ``(i) Not later than 100 days after any foster care 
        placement of an Indian child occurs.
            ``(ii) Not later than 5 days after any preadoptive or 
        adoptive placement of an Indian child.
            ``(iii) Not later than 10 days after the commencement of 
        any proceeding for a termination of parental rights to an 
        Indian child.
            ``(iv) Not later than 10 days after the commencement of any 
        adoption proceeding concerning an Indian child.
    ``(B) A notice described in subparagraph (A)(ii) may be provided 
before the birth of an Indian child if a party referred to in paragraph 
(1) contemplates a specific adoptive or preadoptive placement.
    ``(3) If, after the expiration of the applicable period specified 
in paragraph (2), a party referred to in paragraph (1) discovers that 
the child involved may be an Indian child--
            ``(A) the party shall provide notice under paragraph (1) 
        not later than 10 days after the discovery; and
            ``(B) any applicable time limit specified in subsection (e) 
        shall apply to the notice provided under subparagraph (A) only 
        if the party referred to in paragraph (1) has, on or before 
        commencement of the placement, made reasonable inquiry 
        concerning whether the child involved may be an Indian 
        child.''.

SEC. 7. CONTENT OF NOTICE.

    Section 103(d) (25 U.S.C. 1913(d)) is amended to read as follows:
    ``(d) Each written notice provided under subsection (c) shall 
contain the following:
            ``(1) The name of the Indian child involved, and the actual 
        or anticipated date and place of birth of the Indian child.
            ``(2) A list containing the name, address, date of birth, 
        and (if applicable) the maiden name of each Indian parent and 
        grandparent of the Indian child, if--
                    ``(A) known after inquiry of--
                            ``(i) the birth parent placing the child or 
                        relinquishing parental rights; and
                            ``(ii) the other birth parent (if 
                        available); or
                    ``(B) otherwise ascertainable through other 
                reasonable inquiry.
            ``(3) A list containing the name and address of each known 
        extended family member (if any), that has priority in placement 
        under section 105.
            ``(4) A statement of the reasons why the child involved may 
        be an Indian child.
            ``(5) The names and addresses of the parties involved in 
        any applicable proceeding in a State court.
            ``(6)(A) The name and address of the State court in which a 
        proceeding referred to in paragraph (5) is pending, or will be 
        filed; and
            ``(B) the date and time of any related court proceeding 
        that is scheduled as of the date on which the notice is 
        provided under this subsection.
            ``(7) If any, the tribal affiliation of the prospective 
        adoptive parents.
            ``(8) The name and address of any public or private social 
        service agency or adoption agency involved.
            ``(9) An identification of any Indian tribe with respect to 
        which the Indian child or parent may be a member.
            ``(10) A statement that each Indian tribe identified under 
        paragraph (9) may have the right to intervene in the proceeding 
        referred to in paragraph (5).
            ``(11) An inquiry concerning whether the Indian tribe that 
        receives notice under subsection (c) intends to intervene under 
        subsection (e) or waive any such right to intervention.
            ``(12) A statement that, if the Indian tribe that receives 
        notice under subsection (c) fails to respond in accordance with 
        subsection (e) by the applicable date specified in that 
        subsection, the right of that Indian tribe to intervene in the 
        proceeding involved shall be considered to have been waived by 
        that Indian tribe.''.

SEC. 8. INTERVENTION BY INDIAN TRIBE.

    Section 103 (25 U.S.C. 1913) is amended by adding at the end the 
following new subsections:
    ``(e)(1) The Indian child's tribe shall have the right to intervene 
at any time in a voluntary child custody proceeding in a State court 
only if--
            ``(A) in the case of a voluntary proceeding to terminate 
        parental rights, the Indian tribe filed a notice of intent to 
        intervene or a written objection to the termination, not later 
        than 30 days after receiving notice that was provided in 
        accordance with the requirements of subsections (c) and (d); or
            ``(B) in the case of a voluntary adoption proceeding, the 
        Indian tribe filed a notice of intent to intervene or a written 
        objection to the adoptive placement, not later than the later 
        of--
                    ``(i) 90 days after receiving notice of the 
                adoptive placement that was provided in accordance with 
                the requirements of subsections (c) and (d); or
                    ``(ii) 30 days after receiving a notice of the 
                voluntary adoption proceeding that was provided in 
                accordance with the requirements of subsections (c) and 
                (d).
    ``(2)(A) Except as provided in subparagraph (B), the Indian child's 
tribe shall have the right to intervene at any time in a voluntary 
child custody proceeding in a State court in any case in which the 
Indian tribe did not receive written notice provided in accordance with 
the requirements of subsections (c) and (d).
    ``(B) An Indian tribe may not intervene in any voluntary child 
custody proceeding in a State court if the Indian tribe gives written 
notice to the State court or any party involved of--
            ``(i) the intent of the Indian tribe not to intervene in 
        the proceeding; or
            ``(ii) the determination by the Indian tribe that--
                    ``(I) the child involved is not a member of, or is 
                not eligible for membership in, the Indian tribe; or
                    ``(II) neither parent of the child is a member of 
                the Indian tribe.
    ``(3) If an Indian tribe files a motion for intervention in a State 
court under this subsection, the Indian tribe shall submit to the 
court, at the same time as the Indian tribe files that motion, a 
certification that includes a statement that documents, with respect to 
the Indian child involved, the membership or eligibility for membership 
of that Indian child in the Indian tribe under applicable tribal law.
    ``(f) Any act or failure to act of an Indian tribe under subsection 
(e) shall not--
            ``(1) affect any placement preference or other right of any 
        individual under this Act;
            ``(2) preclude the Indian tribe of the Indian child that is 
        the subject of an action taken by the Indian tribe under 
        subsection (e) from intervening in a proceeding concerning that 
        Indian child if a proposed adoptive placement of that Indian 
        child is changed after that action is taken; or
            ``(3) except as specifically provided in subsection (e), 
        affect the applicability of this Act.
    ``(g) Notwithstanding any other provision of law, no proceeding for 
a voluntary termination of parental rights or adoption of an Indian 
child may be conducted under applicable State law before the date that 
is 30 days after the Indian child's tribe receives notice of that 
proceeding that was provided in accordance with the requirements of 
subsections (c) and (d).
    ``(h) Notwithstanding any other provision of law (including any 
State law)--
            ``(1) a court may approve, as part of an adoption decree of 
        an Indian child, an agreement that states that a birth parent, 
        an extended family member, or the Indian child's tribe shall 
        have an enforceable right of visitation or continued contact 
        with the Indian child after the entry of a final decree of 
        adoption; and
            ``(2) the failure to comply with any provision of a court 
        order concerning the continued visitation or contact referred 
        to in paragraph (1) shall not be considered to be grounds for 
        setting aside a final decree of adoption.''.

SEC. 9. FRAUDULENT REPRESENTATION.

    Title I of the Indian Child Welfare Act of 1978 is amended by 
adding at the end the following new section:

``SEC. 114. FRAUDULENT REPRESENTATION.

    ``(a) In General.--With respect to any proceeding subject to this 
Act involving an Indian child or a child who may be considered to be an 
Indian child for purposes of this Act, a person, other than a birth 
parent of the child, shall, upon conviction, be subject to a criminal 
sanction under subsection (b) if that person--
            ``(1) knowingly and willfully falsifies, conceals, or 
        covers up by any trick, scheme, or device, a material fact 
        concerning whether, for purposes of this Act--
                    ``(A) a child is an Indian child; or
                    ``(B) a parent is an Indian; or
            ``(2)(A) makes any false, fictitious, or fraudulent 
        statement, omission, or representation; or
            ``(B) falsifies a written document knowing that the 
        document contains a false, fictitious, or fraudulent statement 
        or entry relating to a material fact described in paragraph 
        (1).
    ``(b) Criminal Sanctions.--The criminal sanctions for a violation 
referred to in subsection (a) are as follows:
            ``(1) For an initial violation, a person shall be fined in 
        accordance with section 3571 of title 18, United States Code, 
        or imprisoned not more than 1 year, or both.
            ``(2) For any subsequent violation, a person shall be fined 
        in accordance with section 3571 of title 18, United States 
        Code, or imprisoned not more than 5 years, or both.''.